Civil Engineering Reference
In-Depth Information
evidence that the reimbursement of direct loss and/ or expense, if any, to the
Contractor pursuant to clause 4.23 is in final settlement of all and any claims which
the Contractor has or may have arising out of the occurrence of any of the Relevant
Matters referred to in clause 4.24, whether such claim be for breach of contract, duty
of care, statutory duty or otherwise. Accordingly, despite the terms of clause 4.26, the
Final Certificate is conclusive as to loss and expense in respect of any of the matters
described in clause 4.24, notwithstanding the legal basis upon which payment arising
out of such matters was sought.
The provisions contained in clauses 4.20-4.23 of the SBC/DB are broadly similar
to those contained in clauses 4.23-4.26 of the SBC, except there is no reference to the
Architect/Contract Administrator. The Contractor must make written application to
theEmployer,inthesamemannerasapplicationtotheArchitectisrequiredunder
the SBC. A list of the Relevant Matters in respect of which direct loss and/or expense
can be claimed under the SBC/DB is contained in clause 4.21. The matters are:
•
Changes and any other matters or instructions which under the conditions are to
be treated as, or requiring, a Change. In relation to loss and/or expense arising from
changes under the SBC/DB, see also Sections 4.5.2 and 5.2.3.
•
Instructions of the Employer under clauses 3.10 (postponement of work) or 3.11
(expenditure of provisional sums).
•
Instructions of the Employer for the opening up for inspection or testing of any
work, materials or goods under clause 3.12, unless the inspection or test shows that
the work, materials or goods are not in accordance with the contract.
•
Compliance by the Contractor with clause 3.15.1 (Antiquities) or with the
Employer's instructions under clause 3.15.2.
•
Delay in receipt of any permission or approval for the purposes of Development
Control Requirements necessary for the Works to be carried out or proceed, which
delay the Contractor has taken all practicable steps to avoid or reduce.
•
Any impediment, prevention or default, whether by act or omission, by the
Employer, the Architect, the Quantity Surveyor or any of the Employer's Persons,
except to the extent caused or contributed to by any default, whether by act or
omission of the Contractor or of any of the Contractor's Persons.
Having received the Contractor's written application, the Employer is to form an opin-
ionastowhethertheregularprogresshasbeenorislikelytobemateriallyafected
as stated in the application or whether direct loss and/or expense has been or is likely
to be incurred due to deferment. As with the SBC, the Employer can request from
the Contractor such further information as is reasonable to enable him to form such
an opinion. Again, as with the SBC, clauses 4.20-4.22 are not exhaustive of the Con-
tractor's rights in such circumstances and clause 4.23 provides that they are without
prejudice to any other rights and remedies which the Contractor may possess; though
it should be noted that the Final Statement under clause 1.8.1.3 has the same conclu-
sive effect in respect of the reimbursement of direct loss and/ or expense, if any, as the
Final Certificate under the SBC.
The NEC3's approach to loss and expense is somewhat different from the SBC and
the SBC/DB and the most striking difference is that the NEC3 does not distinguish
